Bad History Will Kill America

I'm Jake Stouk, co-founder and CEO of Serval. We built Serval to automate the IT work that slows companies down. Onboarding, password resets, access to applications, my laptop stopped working. While employees wait for help, their real work is put on hold. IT desperately wants to automate this work, and that's why they need Serval. You just tell Serval what you want to automate in plain English, and it's built. No drag-and-drop workflows, no expensive consultants. Employees get unblocked, and IT teams go from drowning in tickets to building what actually matters. With Serval, IT becomes the AI engine powering the entire company. This is a new way to run IT. We guarantee you'll automate 50% of all tickets, and we'll prove it to you in a free four-week pilot. Go to serbel.com slash tickets. That's s-e-r-v-a-l.com slash tickets. This episode is presented by Planned Parenthood Federation of America. Many of the most important legal fights in this country come down to a basic question. Who gets to make decisions about our bodies and our health care? That question isn't theoretical. It's playing out right now. The Trump administration's backers in Congress are trying to permanently defund Planned Parenthood, an effort to shut down health centers and block patients' care, especially from those with low incomes. Together, we have the power to protect and expand affordable care. Visit plannedparenthood.org slash defend and make a gift today. Hey, Amicus listeners, it's Daya. And Mark. And we want you to join us for a true amicus tradition. The 250th annual Amicus breakfast table. Okay, it hasn't actually been that many, but the breakfast tables are great. It's me and Mark live with a super smart panel of legal experts in conversation. We're going to dig into what happened during the Supreme Court term, and there's a lot to talk about. We're inviting Slate Plus members to join our live audience for this taping and the exclusive Q&A that follows from the comfort and the safety of your own laptop. July 10th at noon Eastern. To register and to join Slate Plus, if you haven't already, go to slate.com slash breakfast table. That's slate.com slash breakfast table. This is Amicus Slate's podcast about the courts, the law, and the Supreme Court. I'm Dahlia Lithwick. And I'm Mark Joseph Stern. We have independent agencies that guarantee safety at work, that protect the right to organize, that guarantee safety of consumer products. We have independent agencies that prohibit discrimination. Well, none of these are independent agencies anymore. This is more power than Kings had. And by the way, on the 250th anniversary of the nation's founding, it's helpful to remember that among the things that the revolutionaries didn't like, it was royal power. Okay.

Happy birthday America. We are feeling every moment of those 250 years after the week that we just had, right, Mark? You know, Dahlia, this whole Opinion Paloosa season has felt even more exhausting and chaotic than other recent terms. Somehow, could that be possible? Yeah, I think it's cumulative. I think it is aggregated over time. And so very much more was accumulated this week alone. Mark and I have been in your earbuds and on your YouTube to talk about the breaking news. But now we're going to start the harder, more durable work of really digging through what happened. And then we're going to start trying to figure out with you what the American people can do about all this. Yeah, the questions in our email inbox this year are kind of different from years past. And by the way, that email address is amicus at slate.com. Before, our savvy listeners often asked about precedent and procedure and wanted to discuss doctrine or understand a particular legal turn of phrase. But this year, we're receiving so many more emails that are just asking us, well, this is so broken. So what do we do to fix it? And we are going to be, and we pledge this to you, tireless and relentless in working toward those answers. And we hope that you will join us for our roundtable on Friday, July 10th, where we will be joined in that quest by a panel of legal all-stars to digest this past term together. Go to slate.com slash breakfast table to register for that live episode taping. That slate.com slash breakfast table, all one word. But today, we're going to focus on one of the biggest cases of the term that is in danger of being swallowed whole by the birthright citizenship, Nina Totenberg news cycle. And that is Trumpy Slaughter, because while the birthright citizenship case, Trumpy Barbara, grabbed the lion's share of the attention on the last days of the term, the case that will leave a crater in the country for years to come is slaughter, a decision that fundamentally reshapes the author authority of the executive branch, Congress, and the High Court itself in more ways than most of us can begin to imagine. So on today's show, we wanted to focus the aperture on two ideas. One is that the decision in slaughter will have knock on effects you probably haven't even yet begun to contemplate. And two, is that bad history is strangling America. And so maybe the most succinct framing we can give you for today's conversation. Bad history is going to kill us all. Because the demise of independent agencies and the civil service and expertise don't always register as tectonic shifts, we needed some experts to help explain all the ways this is tectonic. And we're going to talk about the massive stakes and also the incredibly shoddy foundations upon which the majority built its decision. We have two of the very best people here to lay all that out for us. Sam Baganstas is the Frank G. Miller, Professor of Law at the University of Michigan. He specializes in civil rights, labor and employment law, health law, and governance. From June 22 to December 2024, Sam was General Counsel to the Department of Health and Human Services where he...

He played a key role in advancing and implementing policies across that department. Under President Obama, he was an appointee in the U.S. Department of Justice, where he served as the principal deputy assistant attorney general for civil rights, the number two official in the Civil Rights Division. Welcome back to Amicus, Sam. Thanks so much. Really happy to be here. Jed Sugarman is Professor of Law and Harry Elwood Warren Scholar at Boston University School of Law, where he teaches torts, civil procedure, property, federal courts, administrative law, and legal history. He has a JD PhD in history. He's currently working on two books on the history of executive power and prosecution. He has the distinction of Justice Sotomayor citing five of his articles and her dissent in slaughter on Monday. And on Tuesday, Ketanji Brown Jackson cited his amicus. his brief and his article, an originalist case for birthright citizenship, in her concurrence in Trump v. Barbara. Thanks for having me. So, Sam, we thought we'd start with you and slaughter because it can be a little bit technical. It's also incredibly important. So I wonder if you would just do us the kindness of setting the table, reminding us what the Supreme Court held in slaughter and also what it then... carved out in Cook, both handed down the same day. Before we get to this deeper question of whether we can even square the two, just help us understand what changed, what the court decided. So for decades now, Congress has decided, the elected representatives of the people have decided, and presidents have passed laws saying that there are some kinds of functions of government that we want to have some independence from whoever is sitting in the presidency at any given moment. And so the case that was in front of the court involved the Federal Trade Commission, which was created early in the 20th century, and was designed to have a certain amount of insulation. from the president. The president appointed members of the Federal Trade Commission, but the appointments were, it was a multi-member board. The appointments came due at different times. So there was no way to completely change direction of the Federal Trade Commission. And Congress made clear that presidents couldn't remove federal trade commissioners except for good cause. And so the question in front of the court was essentially was that constitutional. Donald Trump decided very early in his second term to fire the democratically appointed members of the Federal Trade Commission, the two Democrats who were still sitting on the commission, to give the commission a Republican-dominated cast. And the court said, yeah, it's unconstitutional for Congress to limit the ability of the president to remove at least the people who count as principal officers, the heads of agencies. Instead, the president has the power to appoint them with advice and consent of the Senate, but then the president can remove them whenever he wants for whatever reason he wants. And the court said that's something that we get from the executive power in Article 2 of the Constitution. Now, the question then is, well, what about all the other independent agencies? And the court pretty much...

indicated that there aren't independent agencies, but for one, which is what they said in the Cook case. They said, well, the Federal Reserve is really different. In the Cook case, what President Trump tried to do is fire a person who sits on the Federal Reserve, one of the governors of the Federal Reserve, Lisa Cook, said that she had engaged in misconduct. totally drummed up case of misconduct. And what the court said is, you know, she didn't get sufficient procedure to determine whether she'd engaged in misconduct. And it was okay for Congress to limit the ability of the president to remove members of the Federal Reserve Board because that agency, unlike other agencies, can constitutionally be independent. Why? Well, it's nothing in the text of the Constitution. It's more that, The Fed is really important to the economy and, as the court said, stands in the tradition of the first and second banks of the United States. Now, we can talk in a bit about the reasoning there, which is, you know, really laughable. But the basic distinction they drew was, there's the Fed. which we're going to say is independent for reasons. And everything else can't be an independent agency. Instead, every other function of governance pretty much has to be subject to the will of the president in removing whoever sits in charge. And I want to ask you this, Jed, because it would be easier to square cook and slaughter of the same. guy hadn't written the opinions at the same time. And there was a weird moment just, I don't know if this is too inside baseball, but it seems like interesting stagecraft where they were read sequentially from the chamber. So, you know, if you're sitting in the chamber, you heard slaughter and then cook. but handed out in the press room bound together. So the folks in the press room got them at the same time and they came online at the same time. But if you were sitting in the courtroom, you found out about one and then found out about the weird carve out. So I guess I just want to ask you, Jed, Do you want to make any attempt to do the thing that Sam just kind of declined to do, which is explain the carve out for the Fed that is, if you can give me like your best non-cynical results-oriented answer for whether it makes sense to let Lisa Cook live to see another day? I can make sense of Cook. I can make an argument for Cook. There is no way a principled originalist. can reconcile slaughter on all of the other independent agencies and then also on Cook. But let me try to give the best account for this. I'll start by saying I agreed with everything Sam said, except I want to expand on when he said that for decades that we have had independent officers, I'd say.

We've had independent officers from the founding. The founders created a series of independent commissions, a super independent entity, the first bank of the United States. It was super independent because it was... private and the president did not pick the board that ran the first bank of the United States. And what am I talking about? There was a musical that touched on the creation of the first bank of the United States. The issue on the table, Secretary Hamilton's plan to assume state debt and establish a national bank. Secretary Jefferson, you have the floor, sir. That is the first rap battle between Hamilton and Jefferson. And the principle there is that, oh, around the founding, the framers of the Constitution then when they were in the first Congress, like Hamilton, created a very important entity that was completely independent of presidential control. And because the Fed has the most connection to monetary policy. It can be independent because the founders created an independent bank with the first bank and the second bank of the United States. And you'll let me know when I can go cynical. Go cynical. Do it. Okay. Let's give partial credit to Clarence Thomas and some partial credit to Amy Coney Barrett because even though they are... spectacularly wrong about the history in slaughter. The history, it was obsolete before the ink was dry. And Thomas has the goods on this. You can't rely on the first and second banks of the United States. Setting aside the question of what counts for originalism, if all of this happened years after the Constitution was drafted and ratified, even the first and second banks, they were entirely private. And they had zero executive regulatory power. The banks are not an example as a precedent for the Fed because the Fed exercises executive power in formulating policy, executing and enforcing that policy. The first and second bank could do none of that. And so this isn't just historians saying so. These are the colleagues who signed on to Slaughter who are basically calling John Roberts out for just making this up. Just to get even more cynical, I will build on Dahlia's point about how these were released and just remind people, normally opinions are published on the website as they're announced in the courtroom. Here, Slaughter and Cook came out on the website at the exact same time. Almost certainly because John Roberts knew that he was going to read Slaughter and Sotomayor was going to read her dissent and there was going to be a half hour in between Slaughter coming down in the courtroom and Cook coming down and the markets might panic during that time and possibly tank because anybody reading Slaughter without Cook right next to it would assume to Jed's point that it would also apply to the Federal Reserve because there is actually no coherent or principled way to carve out the Federal Reserve. So I'm glad the

a majority opinion. Why did that happen? In the 70s and 80s, there was a sense that the problem of Watergate for certain Republican lawyers was not Nixon, but was Congress and the courts encumbering a president in the middle of the Cold War. And from Nixon to Reagan, there was a sense that the deep state was more... sympathetic to pluralism and civil rights. And there's also this culture war component of the deep state being too secular and too out of step with quote unquote real America. Yeah. So let's talk about all of those other agencies that are not the Fed that are now subject to Trump's direct control. Sam. Can you help us understand the size of the hole that slaughter blew through, not just like the administrative state, but American government, the structure of our government? Because for a lot of people, this is still an abstraction. But what will this actually look like in practice? So if you look at all of the things that the government does, There are a lot of things that we don't want to be decided based on day-to-day politics. And the people and their representatives through the years have made clear that they don't want these things to be decided based on day-to-day politics. I mean, start with... an area that I did a lot of work in during the Biden administration, you know, public health. So obviously there are a lot of very political choices that get made in public health, but there's also a very substantial component of that that's just about science, you know, that's just about how do viruses get transmitted? What are the molecules that are going to effectively attack those viruses? What are the side effects? Right. We want... to be making those decisions, not based on someone's whims, not based on what's going to serve the polls. We want those decisions to be made based on... science, right? We want them to be made based on at least the best understanding of what is going to lead to transmission of a disease, what are the effective ways of preventing it, what are the costs of preventing it, that sort of thing. And what this decision does, it follows on actually another decision just a year ago, that completely gutted. Congress's guarantee of independence for an important part of public health, which is the U.S. Preventative Services Task Force that made recommendations on what are effective preventative health services. The court there said reading a statute.

totally ridiculously in light of these constitutional principles that this agency that Congress said should be independent actually can't be independent. It's got to be subject to the will of the president. But we have independent agencies that do all sorts of things. We have independent agencies that guarantee safety at work. We have independent agencies that guarantee safety of consumer products. We have... independent agencies that protect the right to organize uh for workers we have independent agencies that prohibit discrimination well none of these are independent agencies anymore every one of these now is subject to the whims of a president the president can just fire all the people who are who are leading those agencies who he disagrees with even if they've been properly nominated even if their terms aren't up yet um and that's going to make a huge difference. That's going to enable things like what we've seen in the first year and a half of the Trump administration, where he was acting as if the Supreme Court had already decided this case, right, where he was basically politicizing all of these aspects of governance that need to be carried out on a nonpartisan and impartial basis. And I think, you know, the other thing to point out here, about the implications is the court and Chief John Roberts, in his opinion, was very, very squirly about how far it extends. So the analysis in the opinion is... We need to have a president who is accountable to the people for the decisions made by his government, which means he has to be able to fire his subordinates. That's the word that... John Roberts uses over and over his subordinates if they don't do what he wants. Well, what is a subordinate? I mean, we know it means the head of an agency, what, you know, in constitutional terms we'd call a principal officer of the United States, but does it extend below the level of agency heads? Does it extend to other political appointees within the agency? And then the $64,000 question here is, does it mean that the civil service as a whole? is unconstitutional. You know, ever since the 1880s and the enactment of the Pendleton Act, we have understood in this country that government works better for the people if the mass of workers in the government are hired and promoted based on merit and not based on which political party or candidate they support. And, you know, Trump has indicated, and people within his administration have indicated, they think that's unconstitutional, that the president ought to be able to hire and fire at will all the people within the government. And you actually see career civil servants at the Department of Justice being fired without cause. And when they're asked why, the email they get says, you're fired because of Article 2.

Right? So we know this is a president who has already asserted the power to fire career civil servants based on his understanding of the Constitution. What the court did in Slaughter is it didn't say that's right, but it also could have very easily said, look, we're only talking about political appointees who can be fired this way. And they didn't do that. They left open the argument that Trump is making. that the entire civil service is unconstitutional. Once you get rid of the civil service, right, that is a dramatic sea change in the way we do government in this country, and that will make government work much more poorly across everything it does for the people. Yeah, Sam, and a point that I think got lost in this discussion is that the federal agency that's supposed to protect the civil service from unlawful and partisan firings, the Merit Systems Protection Board, was meant to be independent, but Trump fired its Democratic members and paralyzed it for months, and it could not enforce those protections. And so even if, in theory, this decision doesn't reach directly down into the civil service, it still allows the president to take. over the agency that is tasked with protecting the civil service. So clearly the ramifications will be bad for federal workers. We just aren't totally clear on how bad yet, right? That's right. Let's pause now to hear from some of our sponsors. This episode is presented by Planned Parenthood Federation of America. Many of the most important legal fights in this country come down to a basic question. Who gets to make decisions about our bodies and our health care? That question isn't theoretical. It's playing out right now. The Trump administration's backers in Congress are trying to permanently defund Planned Parenthood, an effort to shut down health centers and block patients' care, especially from those with low incomes. Together, we have the power to protect and expand affordable care. Visit plannedparenthood.org slash defend and make a gift today. This episode is brought to you by Ground News. Here at Amicus, we read a lot about the Supreme Court, but it's not the only news we consume. And like you, we seek out different sources on the same subject to get the full story. Ground news is a great way to get down to the facts. It's an app and website that makes it easy to compare news sources break free from algorithms and think critically about where you're getting your news. Recently, I went to Ground News to learn more about the resignation of British Prime Minister Keir Starmer. Ground News had rounded up coverage from 40 different sources. According to the platform, 46% of the coverage is center or nonpartisan. But if you click right, you can see right-leaning coverage that claims, quote, Keir Starmer offered Britain not. And if you click left, you'll see headlines lamenting that Keir Starmer is, quote, the latest casualty of the Downing Street meat grinder. The Nobel Peace Center called Ground News, quote, an excellent way to stay informed, avoid echo chambers, and expand your worldview.

Here's how to get started. Go to groundnews.com slash AC to get 40% off their unlimited access vantage subscription. That's groundnews.com slash AC and you'll get 40% off the vantage subscription, whether you subscribe yourself or send it as a gift. Make sure to use our link so that they know that we sent you. That's groundnews.com slash AC. This episode is sponsored by Michaels, your destination for all things birthday parties. We just had Lucky's first birthday... And it was so great to be able to go into Michaels and get everything. Of course, I knew they had craft supplies there. But I didn't realize how expansive their party supplies were. And Michaels really is where you can go to get everything for a party, whether you're planning a kid's birthday or even an adult celebration. They've got over 4,500 party supplies, more than 60 different themes. And prices starting at just 99 cents. Plus, they've recently lowered prices on hundreds of items. We found adorable decorations, balloons, everything we needed to pull the party together without making a bunch of different shopping trips. Plus, I always have a good time going to Michaels. I love shopping there. I could just browse the aisles forever. But if you're short on time, like I always seem to be, you can also get same-day delivery or buy online and pick up at the store. They even offer free helium inflation on select balloon styles, which is such a lifesaver, and it was for our party, truly. So if you got a birthday coming up or just a celebration, remember Michaels, everything to celebrate anything. Visit Michaels in store or shop online now. And we are back talking about the end of the 2025 Supreme Court term with Sam Baganstas and Jed Sugarman. Um, so, Jed, I hear you getting ready to, um, dive into the history. You're very excited. Rightly so as an expert on this. You know, this was, of course, a seismic decision. It came right alongside another seismic decision that overturned another precedent, right? This overturned Humphrey's executor, which was 91 years old. The next day, the Supreme Court released a decision that overturned a campaign finance decision that was more than two decades old. Clearly, there's a lot of reversals. going on, not a lot of respect for stare decisis, nor a lot of respect for real history. So, Jed, we'll start with you and let's dig into this terrible history and slaughter because the Sotomayor descent is pretty clear that the majority just got it wrong in every way, got it absolutely backward. You said the history is already obsolete. Can you sort of give us the overview of what John Roberts butchered? Well, so...

Let me tell you just about what is what's in the Constitution and what's not in the Constitution and what sort of felt new and off the wall in this decision. So the Unitary Executive Theory has had three pillars, especially in the revival under Scalia's dissents. And then John Roberts wrote two opinions, one in 2010 and one in 2020. These pillars have been debunked before. There are about a dozen of us legal historians or legal scholars that have systematically. overturn these pillars. The three pillars are, or were, the first line of Article 2 for the presidency and the executive branch is that the executive power shall be vested in a president of the United States. Okay, that's not a removal clause. This is like, you know, conservatives usually criticized relying on penumbra and emanations. So some of these other scholars have made this point clearly that there's an irony of that what the warrant court was criticized for by conservatives. This is the conservative Warren Court under John Roberts that they read that they, they, they read into and infer from executive power that there must be a removal power. What Sotomayor calls out is that this is really a royalist assumption and it's also false. This is more power than Kings had. And By the way, on the 250th anniversary of the nation's founding, it's helpful to remember that among the things that the revolutionaries didn't like, it was royal power. Okay. So there's this irony that I think Sotomayor picks up. Second pillar is the clause in the same article two, that the president shall take care that the laws be faithfully executed. And John Roberts repeatedly misunderstands that that clause is not... chiefly a power granting clause. It is a duty binding clause. It limits executive power because it requires faithful execution. Sotomayor also nails that point with the recent history. This is one of the articles that I co-wrote. And then the third pillar is something called the decision of 1789, it is way too complicated and confusing for everybody, for me to get into the details of that. Let me just say that not only has it been debunked by legal historians repeatedly, there's now a consensus among conservative originalists, whether they say so publicly or not, that the first Congress did not endorse John Roberts's version of the Unitary Executive Theory. Okay, those were the three pillars. Let me just say the thing that is really off the wall. that I think people are really sort of laughing at is that Chief John Roberts leads with the most bonkers anti-textual claim. That it is the appointments clause. That is the basis for this unconditional presidential power. But it's curious that he wouldn't actually quote the actual text of the appointments clause. So I'll do that for you here. Listen for where you hear any difference on appointment. about whether the president has this unilateral power. The president shall have the power, by and with advice and consent of the Senate, to make treaties provided two-thirds of the senator's president concur, and he, the president, shall nominate comma, and by and with the advice and consent of the Senate, comma, shall appoint ambassadors, judges, and all other officers of the United States.

And it was none other than Justice Scalia, an originalist opinion called Noel Canning, who waxed poetically about the importance to the founders of setting a limit on what had been a unilateral royal power of nominating and appointing unilaterally. And Scalia goes on and on in Noel Canning, rightly, about how important it was to the founders that the president not have unilateral appointment power. This is... You know, heads I win, tails you lose. Because John Roberts doesn't have a single source that says about the appointments clause that it has this counterintuitive countertextual interpretation. Most of us just didn't think that this was even a plausible argument. I had to be persuaded to put this back in my amicus brief. And I just was like, there's no way that anyone who actually reads the history who cares about the history is going to claim it. And it's what John Roberts led with. I think that's very revealing about whether John Roberts reads the amicus briefs or reads the history, because this has been debunked repeatedly by none other than Justice Scalia. Sam, I guess we wanted to just give you a chance to add any thoughts you have on the Sotomayor descent? Well, I think the Sotomayor descent is very good and very strong, and I think it shows she really did go very extensively through the amicus briefs and the underlying scholarship to show why this story that John Roberts is spinning about the history is just made up. It's just not the true story. It's been debunked. I think she does a nice job of highlighting the... extensive implications for our government of this decision. And she in particular highlights that John Roberts is leaving open the challenge to the civil service system as a whole. Again, it would have been really easy for him to say, I'm just talking about the highest level. political appointees here. Of course, the president gets to remove them. And, you know, you could have arguments about that from a democratic perspective, from a democratic theory perspective, from a governance perspective. But the idea, which is left open by this decision and is in some ways supported by the logic of this decision, that the civil service is unconstitutional, that would be... dramatic. So, and I think she does a really nice job of pointing that out. I think the one thing that I would have liked to have seen more of in the dissent sort of, it's there, but it's not highlighted as much as some of these other points, and we haven't talked about it yet, is there's not just a historical theory. behind John Roberts's decision. There's a political theory behind it. And the political theory behind the decision is the way that democracy works is there's one president. He's responsible for everything that happens within the executive branch. He's responsible for all execution of the laws. And he is...

therefore responsible to the people who can hold him accountable for everything that happens within the government. And, you know, Robert says this over and over and over again in these decisions. And if you think about it for five seconds, that's also a pretty laughable proposition. I mean, first of all, presidents stand for election, you know, can get elected at most twice, right? So they stand for re-election at most once. So there's a very limited opportunity for the people to hold the president accountable for anything. There are a bazillion decisions that get made under the egos of a particular president's executive branch. The idea that any voter is even going to know about those decisions, much less be able to... hold the president accountable for any of those decisions, some of which may point in different directions from a voter's point of view. When the voter has a binary choice, essentially, are you going to vote for the Democrat or the Republican? It's also laughable to think that such a blunt vote sends any kind of a Democratic signal one way or another about any particular policy. And also, the idea that Democratic accountability only happens once every four years in presidential elections just ignores the fact that it's Congress who is democratically accountable every two years and whose members may sit for election over and over and over and over and over again, who pass these statutes to create. protections for people who run particular agencies and that the people seem to want that because it leads to better government. So there's a whole political theory that John Roberts is basing this opinion on that just seems completely false. And I'd like to see more engagement with that as well. Sam, that's 100% right. And it's 100% right as a matter of originalism. So John Roberts has been spinning this theory of the president as the most directly. democratically accountable officer. In Sayla law, he wrote that the president is, quote, directly accountable to the people through regular elections. And the president is, quote, the most democratic and politically accountable official in government. And he wrote those sentences literally the same week that they handed down the most important recent opinion about the electoral college. And John Roberts is engaging in such. deliberate dissonance because the electoral college was a deliberate decision not to make the president what he claimed the president was from the founding. The founders, they did not think of the president as a representative of the nation, certainly not direct. At the founding, there were officers who were directly elected. That was the members of the House. And one can also make an argument of that representation that the least representative officers are the ones where it's a zero one proposition because then you're only representing 51 percent or with our electoral college. Maybe it's only 48 or 47 percent of the electorate. Whereas independent agencies, because of staggered terms and multiple sources of appointing and confirming, have to reflect...

presidents and senates over many years. So arguably, independent agencies are more representative of more Americans over more time than... any single president is. I'll just add, I think this is what irks me the most about Robert's opinion and slaughter. It isn't enough for him to regurgitate all of this bad history that's been totally debunked or to present this tendentious theory of the Constitution as though it's obviously correct. It's for him to then gaslight us by saying, oh, and by the way, this is Good. Like, this is the system that you want in a democracy, the system that we're creating where there are no independent agencies except the Fed. And everybody in the executive branch is controlled by the president in this dictatorial way. That's fantastic for a democracy and you should be thanking us. Like, dude, if that were true, you wouldn't have carved out the Federal Reserve. Like, you yourself obviously see that it is in fact not beneficial under at least some circumstances for the president to have. have this authoritarian control over all federal agencies, you just happen to like this one because it protects your wealth. And so it really bothers me when John Roberts and all the other unitary executive theorists. try to convince us that the system they are forcing upon us, that is not set out by the Constitution, that was not envisioned by the framers, is in fact good for us and the American people and for accountability. This theory of accountability is stupid. It is facially false for all the reasons that Jed and Sam laid out. It is bad for us as the American people. It is bad for democracy. And I really. I cannot take John Roberts gaslighting me about it for one more second, so I had to get that off my chest. I also want to pivot to, I think, a related question, which is what... we say to the defenders of slaughter and the defenders of this Supreme Court who claim that this ruling is not partisan because it helps Democratic and Republican presidents alike. There are a lot of political scientists who have raised concerns that even if the unitary executive theory is nonpartisan on paper, it creates structural advantages for Republicans over Democrats. And I'd really like to dig into that. Sam, maybe we can start with you. Yeah, I mean, I think we saw in the Biden administration that the very partisan, I will say, Supreme Court had all sorts of ways of reining in the executive power of a president who they didn't like and whose outputs, whose policies they didn't like, without taking on this issue in particular. So, you know.

I actually fully expect that if a Democratic president were to try to fire, you know, some member of the FTC in the future, some member of the NLRB, some Trump appointee. this Supreme Court would uphold that firing and would adopt exactly the same ruling that it adopted here because they'd find other ways of reigning in the president's power. I mean, think about what happened when Biden was president. The major questions doctrine becomes a very powerful tool for the John Roberts Court to stop President Biden from using statutes according to their text to achieve. relatively progressive outcomes. Court doesn't like those outcomes. Court steps in and says, well, yeah, the text of the statute may support what the president's doing, but this seems to us like a really big deal, and so we'd want something a lot more specific, sort of applying a baby non-delegation doctrine. And there are all sorts of other ways in which a... an activist Republican court can rein in an activist progressive president that don't require using this particular tool. So, I mean, yeah, you know, it's great for... the next Democratic president that they'll be able to fire the Trump appointees in the NLRB and in the FTC and whatever. But then when their new appointees try to actually get something done, what they're going to find out is that the courts are standing in their way. We are going to take a short break. This episode is presented by Planned Parenthood Federation of America. Many of the most important legal fights in this country come down to a basic question. Who gets to make decisions about our bodies and our health care? That question isn't theoretical. It's playing out right now. The Trump administration's backers in Congress are trying to permanently defund Planned Parenthood, an effort to shut down health centers and block patients' care, especially from those with low incomes. Together, we have the power to protect and expand affordable care. Visit plannedparenthood.org slash defend and make a gift today.

Hi, this is Kim and Penn Holderness from the Laugh-LafLines podcast. This episode is sponsored by Ali, your wellness partner for back-to-school and beyond. Back-to-school season is here. Packed backpacks, packed lunches, and packed schedules are officially back. Ollie Kids Sleep helps little dreamers wind down with a gentle blend of melatonin, L-theonine, and botanicals for restful sleep. Translation, an easy way to put those school night negotiations to bed. And for the grownups, Ollie's sleep helps you fall asleep, stay asleep, and wake up feeling refreshed. Because as you know, the morning mayhem comes early. Visit Ali.com and stock up on back-to-school must-haves today. That's OLL.L-Y.com. These statements have not been evaluated by the Food and Drug Administration. This product is not attended to diagnose, treat, cure, or prevent any disease. Let's return now to our conversation with Sam Baganstas and Jed Sugarman. I want to also just re-up my reaction to the, oh, good, this will be great when a Democrat takes office. I was sort of astonished by it. It was as though the Biden administration never happened. Like we didn't have a proof text for exactly how this went. And it was like a very weird. Talk about bad history. I found it to be quite a baffling turn. I want to turn if we might for the last few minutes of the show to. the birthright citizenship case, Trump v. Barbara. Yes, glove saved the justices strike down, Donald Trump's executive order, restricting birthright citizenship. But as Mark and I have suggested all week long, that was a 5-4 decision. on the constitutional question. Brett Kavanaugh said it's only a violation of the statute. It could be tweaked by Congress tomorrow to change the rules. And I'd love to have the first cut response from each of you to what just happened in the birthright citizenship case, especially since it was the last to come down and somehow becomes the template for the conversation all summer. Yeah, so I think number one. There is a strategy behind it being the last to come down. John Roberts is very good at this. So he's setting the narrative that this is a court that's willing to stand up to Donald Trump. And, you know, the answer is actually this was a remarkably easy case on the text, on the history, on all the longstanding understanding of the Constitution. The idea that it was five to four. on the constitutional question is just absolutely baffling and shows just how broken this court is. I mean, the fact that they're doing something that should be just, you know, the table stakes, essentially, of someone of a Supreme Court, interpreting the Constitution, the way the Constitution has been uniformly interpreted for, you know, for decades, over 100 years, I mean.

That's not something to give them enormous credit for. The thing I really worry about is just how close the case was. I mean, we have a political movement in this country that is an anti-immigrant political movement that is a, you know, in many significant ways, a deeply problematically nationalist political movement that has fundamentally changed understandings of the Constitution by a large swath of judges. And they've put their... activist judges on the courts up to and including the Supreme Court. And that is what is leading to this problem. So, so I, you know, I actually see the five to four decision not as something where we can say, you know, that was a close one, but where we say, wow, this is a flashing red warning light about just how bad and how aggressive this court is. Let me add an observation that I think seems like it might be in the weeds, but it really tells us something about what the court's really thinking about. This is something that first years learn about. This is what we spend a lot of time teaching first years is how to read for a holding and to understand what is the holding, what's the analysis behind that holding and what the dicta is. Here's a little tidbit that I think speaks volumes. Okay. Why did Brett Kavanaugh say that he's dissenting in this opinion? The holding of the decision is that Trump's executive order is invalid. And there were six votes for that. And those would all be concurrences because they all reach the same holding. The way that the court says this is reversed or that hands down a decision that that overturns the executive order, any justice who is voting with that is concurring. And yet Brett Kavanaugh. Though he votes for that result only for the limited statutory purpose and says explicitly, I don't think the Constitution gets there, that's still formally a 1L would read that and say that's a concurrence. Brett Kavanaugh went out of his way, bent over backwards, to say that he was concurring in the judgment and dissenting in part. It was very important for Brett Kavanaugh not to be framing himself as someone as someone concurring in this decision. It was very important for Brett Kavanaugh to announce to the world that he was partly dissenting. I mean, this is a little bit like the Salomonic baby, except the baby is a concurrence. Why? I mean, I can only speculate. Could it be that the justices are worried about the Maga movement? John Roberts and Amy Coney Barrett have been attacked by the far right-wing white nationalists. In my own experience on social media after this opinion has come down, I've seen anti-Semitic stuff in my feed about me. I don't know whether it's fear or favor that Brett Kavanaugh did something that one else should identify as weird. Does Brett Kavanaugh and do Gorsuch? identify more with how they're perceived by the base of the Maga movement, or are they afraid of the base of the Maga movement? Either way, I'm trying to understand how a decision that everyone thought after oral argument by listening to it, they understood how Brett Kavanaugh and Gorsuch were going to sign on to a majority opinion in some way, and on the 14th Amendment in particular. And

It is not for coherent, legible, legal reasons. Such a good point, especially about... the way that Brett Kavanaugh styled his opinion, I think it's so important. And one of the reasons that Dali and I kept hammering that on the constitutional question, this is five for it. Like, clearly Brett Kavanaugh wanted us and the world and Donald Trump to see that he dissented from the constitutional holding, which is the most important part. I do just want to spend one beat talking about his dissents, which is, in my view, an abomination. He basically said, look, the, the, drafters of the 14th Amendment couldn't have possibly foreseen what was going to happen next. They didn't think about immigrants, which is untrue. They didn't think that there would be all of these people in the country whose kids would claim citizenship, which is at least contestable. But then he said, okay, well, since in my subjective view, the framers wouldn't have wanted those children to get citizenship, then Congress can just go ahead and create a new exception that cuts those kids out of the promise of the 14th Amendment, even though there is nothing in the text that even... remotely supports that. I'll start with Sam and then go to Jed. I mean, this is living constitutionalism at its worst, right? I mean, look, I think if there's one thing that we've seen from the John Roberts Court is they may claim to be an originalist court, but they are a living constitutionalist court. Everything you need to know about the John Roberts Court is that they are carrying out the agenda of the modern day Republican Party and conservative movement. And that is fundamentally not about what happened in 1787 or what happened during reconstruction. That's fundamentally about now, no matter how hard they try to dress up what they're doing in original escarp. That's 100% right. And it's exactly, I think this Brett Kavanaugh premise, the thing he thinks is a dissent. I have seen that argument in far right-wing circles. Because what the argument was is the drafters of the 14th Amendment could never have imagined, quote unquote, illegal immigration because there were no federal immigration laws in place when the 14th Amendment was written. There was no such thing as illegal immigration. And there was no such thing as temporary immigrants coming to work. That's why I did this research because I saw that argument and then I finally decided to write that article when Trump came back into office and wrote the executive order. It turns out that if you're going to make historical arguments, you might want to read historians. And you might want to read their amicus briefs. And you might even want to read Jackson's concurrence, which was explicitly addressing these assumptions. It is false historically. that there weren't restrictions on immigration. First of all, because there were restrictions on the slave trade. If you read about African American history, it is obvious that there were restrictions on immigration and people were, people either came into or were brought into the country illegally, and they were illegally in the country, what do you do about that? That's part of why the 14th Amendment was written was to address that problem. Blackstone talked about how England restricted Roma, what we pejoratively call gypsies.

Roma were restricted from England, and Blackstone recorded that. Blackstone is one of the key sources for originalists, and that was cited by the amicus briefs. multiple briefs. And then this is where I come in as a PhD historian. I had to read about immigration history to get my PhD. And I learned about how there was a lot of xenophobic anti-immigration politics in the mid-19th century. The no-nothing party was built on that. And it turned out that California had started passing restrictions on Chinese immigrants and framed those immigrants as temporary workers. That's where the racist... label coolie comes from calling chinese coolies with that racist label was to say they're not loyal to america they're here temporarily to send money back to china and then go back to china and that debate was raised and answered by the framers of the 14th amendment that when a senator from pennsylvania said surely you don't mean to be extending citizenship to gypsies and chinese temporary workers the drafters of the 14th amendment Jackson quotes, and this is in the amicus brief, like in mine, is that they directly addressed these kinds of immigrants and said directly for those temporary sojourners. They recognized that they were California-based restrictions on the Chinese. It didn't matter. Birthright was the big, bright line rule. And I have to say, I can only be charitable and say, Brett Kavanaugh didn't read. the articles and the briefs, because I have to imagine that if he had, he would have been embarrassed enough to at least try to address them. This is why they're not originalists. They don't care about the history. They come with their preconceived political and ideological notions, and then they just write whatever they want without reading the history, without caring about historical accuracy. I'm so glad, Jed, that you landed on Ketanji Brown Jackson's dissent because she's been taking originalism on its own terms. And it's really important if you are going to take the history seriously to have a voice on the court who is doing that every day and credibly. And it's just... It's just a masterclass in how not to seed this ground to people who don't take it seriously. Before we let you both go, in a few minutes, absent more confusion about retirements, we're going to draw the curtain on a term that has really been characterized. I think you've both said by bad history, bad textualism, bad science, bad... balancing of the branches of government and their checking functions. And I just like one more answer from each of you in your own respective lanes and areas of concern. How does it play out in the aggregate? What is the big shift that we are going to see in the coming months and years as a result of the cases we've talked about today? Sam? Well, I think the big

takeaway from this term is you have a Supreme Court that in large ways and small has repeatedly enabled the Trump administration's destruction of the mechanisms of governance in this country. And that has been so even when there are very good legal arguments, a lot of that has happened on. the shadow docket, and so people haven't seen it. But, you know, what you have is a court that has basically been Trump's biggest enabler. And then they have two very high-profile decisions on tariffs and on birthright citizenship that they can point to to say, aha, we're standing independently. But notice what they are doing is enabling Trump. on all of the issues, except for the ones that very powerful members of the Republican Party coalition disagree with Trump on. This is not a court that is independent. This is a court that is trimming away the excesses of Trumpism as they see it, but otherwise very significantly enabling it. I think that even though we can look back at these opinions and say they're clearly not doing law or they're not doing originalism, they're exercising their own intuitions and then reverse engineering and gerrymanding the history and the law to get there, at least there are five votes for common sense. The Cook majority included John Roberts and Brett Kavanaugh, who not because of law or history, but out of worry about the markets. My hope is that in the same way, John Roberts and Brett Kavanaugh also worry about nuclear power and nuclear regulations, right? That they don't want three-mile islands. And they also manufacture a reason for there to be independent nuclear regulatory commission. I don't see that in the opinion, but I don't think that matters. I think there's common sense to that. And things like, how about air traffic? If John Roberts and Brett Kavanaugh fly around the world or the country, they might want to make sure that there aren't any more air traffic control accidents. It's a small. It's cold comfort, but it's a silver lining here that at least there are five votes for caring about like basic stability and safety. That's one thing. The other silver lining is these opinions are so obviously wrong on the law and the history to conservative professors in the federal society that are publishing what they've been saying to me over the last decade, which is this history is wrong. And I think that there's a consensus among the people who are going to be the future judges that the John Roberts Court was not taking the stuff seriously. And so if and when a future court wants to overturn this stuff, I think John Roberts already planted those seeds in these opinions. The last problem is I think the fact that they got to five to four on the constitutional question and only five four, it's going to invite another fight. Another executive order and another future fight over birthright citizenship. At least there are five votes. That's a very small silver lining. Jed, thank you so much for coming on. Sam, thank you for being with us. We wish both of you complicated, happy, rousing force. And we thank both of you for your big brains and your good work. Take good care. Thanks so much, yes. Yeah, thanks.

If you like this conversation, there is so much more waiting for you in our bonus pop-up episodes that we released earlier this week. Slate Plus members can access those conversations in full right now. Visit slate.com slash amicus plus to get access wherever you listen. To get all our opinionpalooza extras across slate.com and here on amicus, go to slate.com slash amicus plus. You can also subscribe to Slate Plus directly from the Amicus show page on Apple Podcast and Spotify. By joining, you'll be supporting our work. And for that, we are eternally grateful. Thank you. And speaking of our Slate Plus members, this is just a reminder. Do not miss the Amicus Plus breakfast table on Friday, July 10th, at noon, EDT, Mark and I will be in conversation with Steve Lattick, Carolyn Eiffel, and Nico Bowie. Slate Plus members can sign up to be in the live online audience for this special end-of-term conversation. Go to slate.com slash breakfast table to sign up for online access. Slate Plus members will also have access to an exclusive Q&A with Dahlia and me. Submit your questions now to amicus at slate.com. Thank you so much for listening. Thank you so much for your letters and questions, especially this past week. Keep them coming. We are always reachable by email at amicus.com. You can find us at facebook.com slash amicus podcast. You can also leave a comment if you're listening on Spotify or on YouTube, or you can rate us and review us on Apple Podcasts. Sarah Burningham is Amicus's supervising producer. Our producer is Sophie Summergrad. We had big help today from Joel Meyer. Hillary Fry is Slate's editor-in-chief. Susan Matthews is executive editor. Mia Lobel is executive producer of Slate Podcasts. And Ban Richmond is our senior director of operations. We'll be back with another episode of Amicus next week. Till then, goodbye, Mark. Happy 250th birthday, America. Bye, Dahlia. Happy 250th. This episode is presented by Planned Parenthood Federation of America.

Many of the most important legal fights in this country come down to a basic question. Who gets to make decisions about our bodies and our health care? That question isn't theoretical. It's playing out right now. The Trump administration's backers in Congress are trying to permanently defund Planned Parenthood, an effort to shut down health centers and block patients' care, especially from those with low incomes. Together, we have the power to protect and expand affordable care. Visit plannedparenthood.org slash defend and make a gift today. This episode is sponsored by Michaels, your destination for all things birthday parties. We just had Lucky's first birthday... And it was so great to be able to go into Michaels and get everything. Of course, I knew they had craft supplies there. But I didn't realize how expansive their party supplies were. And Michaels really is where you can go to get everything for a party, whether you're planning a kid's birthday or even an adult celebration. They've got over 4,500 party supplies, more than 60 different themes. And prices starting at just 99 cents. Plus, they've recently lowered prices on hundreds of items. We found adorable decorations, balloons, everything we needed to pull the party together without making a bunch of... different shopping trips. Plus, I always have a good time going to Michaels. I love shopping there. I could just browse the aisles forever. But if you're short on time, like I always seem to be, you can also get same-day delivery or buy online and pick up at the store. They even offer free helium inflation on select balloon styles, which is such a lifesaver, and it was for our party, truly. So if you got a birthday coming up or just a celebration, remember Michael's... Everything to Celebrate Anything. Visit Michael's In Store or Shop Online Now.